About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues.
She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point!
She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together!
She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

Would anyone care to engage with CASCAIDr, the charity, on an interesting stance we’ve come across in our first month – on a council NOT paying for services for a parent whose disability renders them unable to achieve the discharge of her responsibilities to a child?

Here’s the scenario:

A council says ‘You’re a long term physically disabled client of ours, we accept that. You have had a baby. That is a change of circumstances and we will review your plan. You can have 12 hours extra input a week on top of your own care plan for 8 weeks. Then we’ll hand the matter over to Children’s Services.’

After 8 weeks, the Early Years team notes that the child seems to be doing fine, so far, and conveys to the mother that the Early Years Panel isn’t likely to agree to fund ongoing services even if the child counts as a Child in Need under s17 of the Children Act.

The mother goes back to Adults’ Services which then says no, you cannot have any extra help. This is because ‘the father shares parental responsibility with you’.

The father is present within the family unit. He has reduced his paid hours of employment since the baby was born. The implication is that he should be doing more at home for this baby – the council will not say that he should give up work, but they are signposting the couple to paid child-care. However, he is the breadwinner for the couple. The relationship between the new parents has developed on the footing that the man will earn the money, and the woman will shoulder most of the responsibility for the baby whilst she is under 2 – which is a pretty commond arrangement for child care, in many families, in modern Britain.

This woman’s health is deteriorating given the extra difficulty the care of the baby involves on top of her own physical disabilities.

So, what does your council say, in relation to meeting need of this sort, after applying the eligibility regulations for adults’ social care, and having found that the woman’s condition makes her unable to achieve (applying the stretched definition which incorporates achieving but only with significant pain, distress, anxiety or taking significantly longer than others normally would, on a given outcome):

“(j) carrying out any caring responsibilities the adult has for a child.”

– We don’t do this, it’s a children’s services responsibility?
– We won’t meet these needs, if our children’s services team WILL pick it up? But we can’t make them, and we will just leave it to the client to challenge that stance if they say no.
– We can’t afford to provide what is in effect child care for children of a disabled parent, unless the child is at risk?
– We will meet these needs if we can charge your household the full cost of the services we arrange.

Where does the Care Act, or the regulations or the statutory guidance, allow for any of those stances, please?

Answers can be sent to belinda@cascaidr.org.uk – that charity wants to know what YOUR council is doing about this.

We think it’s an error of law, a fettering of discretion, irrational and a breach of statutory duty. Does anyone care to disagree, by reference to legal principle?

These are our favourites but we’ll vary them if there is a big demand for some others we’ve not yet come across: please email belinda@cascaidr.org.uk with your nominations

• You can’t have an assessment – you couldn’t possibly qualify!
• You can’t have an assessment unless you try prevention and re-ablement first (for years!)

• You can’t have an assessment until you actually come here to live, and have arrived!
• You can’t get social care at all, if you’ve got more than £23,250 in savings

• You can’t get an advocate if you’ve got anyone else who’s able to speak for you
• You can’t get an advocate unless you are mentally incapacitated

• You can’t get an advocate because we haven’t got any spare at the moment – let’s just get on with your assessment, shall we?
• You can’t count as a carer if your relative is already in a care home, in supported living, in hospital or if they are on Continuing Health Care or s117 Mental Health Act aftercare

• Sorry, we don’t ‘do’ shopping, cleaning, recreation, meal preparation or night time care, any longer…it’s not social care, you see, because everyone has these needs…and there’s benefits for all that stuff
• If you’re a carer, you will have to make do with a set sum of money for your support needs, because that’s what we’ve always done…

• If you disagree with the budget we offer you, we don’t have to give you any service in the meantime
• If you complain, we have to suspend the care planning process until that’s been finished

• We can decide whether your care and support needs are met or not, even if we don’t pay for anything after the assessment in which we found you were eligible…
• We can cap respite to a set amount per year and charge carers for it

• We can change your care plan and cut the funding whenever our own funding gets cuts from central government or our own budget looks wobbly
• We can tell you at your review how much we’re going to cut your budget by, without any other process or negotiation

• If you’re a person with a learning disability, you have to live in shared care to get our services, even if that means moving into a tenancy we’ve secured for you…
• If you live in one of the tenancies we can secure for you, you have to abide by house rules about friends coming back for the night

• You can only have a direct payment for your services, if it saves us money…
• We can tell you that you have to use an agency from our preferred provider list for your direct payment funded services

• People’s relatives aren’t allowed to be paid out of a direct payment
• We can cap the level of services provided in your own home to whatever the cost of any other way of meeting your needs would be, any alternative that we can think of…

• Top-Ups aren’t lawful, so you can’t do business with us, or ever charge the client or other people anything extra…
• We tell you, the provider, what the price of care is, and you have to accept our prices, and sue third parties for any top-ups that dry up!

It will launch in January, and hopefully make some of what is covered here, travel quite a bit further, and maybe even stick where it matters most – and I am very excited – scared witless, but committed, driven, working all hours and ageing visibly by the minute…but thrilled to be given the go ahead.

We have to make money first though, in order not to run out of steam before we make any impact at all.

So, on 8th December, midway through #CASCAIDr’s pre-opening fundraising campaign, I’m offering a free 1.5 hr webinar, on the Oxfordshire and Merton cases (all about how councils MUST behave during assessment and care planning, if the outcomes are to be lawful).

The aim is to empower and enable people needing social care services, their advocates and their relatives to wise up, and become legally literate enough to ensure that they get their just deserts – their full legal entitlement.

The webinar is free to anyone who can attend online on the day. It’s interactive and the sound will work if you have good broadband and a sound card in your laptop.

The RECORDING of the event will cost £50 for anyone who wants one afterwards, and will play for as many times as you need, but I will be donating ALL the proceeds to the charity. And getting gift aid on top, courtesy of our wonderful government…

If anyone would like to make further donations, I will not say No, of course – and there will be a link to our MyDonate.com button on the day, on this blog post.

Readers may be aware that CQC has started to scrutinise local authorities and CCGs in a programme of visits culminating in a report to the Secretary of State for Health. CQC normally regulates providers of care and health, but there is provision for this sort of ‘special’ review of commissioning, too, in the legal framework.

The focus is on health and social care moving forwards together, and the quality of relations between the council and everyone else: Health, the third sector providing advice and information, clients, patients, carers, providers, etc: “How well do people move through the health and social care system, with a particular focus on the interface, and what improvements could be made?”

The link between adult social care and primary care and acute and community health services is the main topic for investigation and it seems to be a review focusing only on the experience of the over 65s.

20 areas have been identified for review, which is about 15% of councils, so the sample ought to give a good picture of what’s happening nationally, by the report stage, scheduled for 2018.

The ‘maturity, capability and capacity of the local area’ will be considered, in these Local System reviews, which will take place under s48 of the Health and Social Care Act.

Section 48 (2) provides that a special review or investigation looks at —
(a) the provision of NHS care,
(b) the provision of adult social services

I think that it must have been decided that it would be better for the Secretary of State to use that s48 special review power, pro-actively, rather than have more organisations start to lobby the office, for his approval of a single review, after identifying specific complaints or trends said to be a breach of the Care Act, as happened when Equal Lives complained about Norfolk’s practice, last year.

No mention of legal literacy

One question for the project team is ‘What else needs to happen?’ in the context of relational values and the culture in a given area. But Legal Literacy is not mentioned anywhere in the Chief Executive’s briefing paper about the reviews.

My view is that legal literacy is an essential for the health of both those aspects of a system, when the staff are concerned in the delivery of statutorily underpinned judgements, on which legal rights, do, after all, turn.

I am not a specialist adviser to the project but I would like to suggest that it is time for legal literacy to be assessed as part of the competence of front line staff and management.

Evidence of awareness of the legal framework on the part of both health and social care staff should be a primary focus for the reviews.

I do not know how CQC is going to manage the reviews without mentioning legal literacy, as it is an organisation that doesn’t have to interpret or deal with the public law duties of councils any longer, apart from in this context. The reviews are likely to create awareness of a tidal wave of user discontent with the way systems actually operate in practice, outside the legal framework altogether, in lots of situations.

Why do I say that? Well, in the last year, the following are some of the stances that I have been notified of, along with the inquiry from the correspondent – “is this legal?”.

I have given up gasping at what is now landing on my desk, when all any council really needs is an understanding of why Oxfordshire won the Davey case, and why Merton lost the JF case, both cases decided this year.

Staff from the highest to the low, in both health AND social care – do need to know just a little bit about how law WORKS, if decision-making is to be accountable and defensible, as the very minimum we should be resourcing.

Examples of stances around the country:

• Before we’ve even started your re-assessment, we need to tell you that you’re not going to be able to keep that £xxx, for such and such – all that sort of stuff is going now: the Panel says so
• You can’t have an assessment from us, unless and until you actually come here to live, and have actually arrived!
• You can’t get social care if you’ve got more than £23,250 in savings, so there’s no point in being assessed…
• You can’t ever get an advocate unless you’re mentally incapacitated – and certainly not if you’ve got any relative willing to speak for you, regardless of whether you want them to
• You can’t get a Care Act advocate (even though we know you deserve one), because we haven’t got any going spare at the moment – so let’s just get on with your assessment…
• We’ll ‘involve’ you in your relative’s assessment or care planning process, just by telling you the result…
• You can’t count as a carer and get assessed for support, if your relative is already in a care home, in supported living, in hospital or if they are on CHC or s117 aftercare…
• We don’t ‘do’ shopping, cleaning, meal preparation or night time care…
• You can’t have the price of a season ticket, a gym membership, swimming lessons or the cost of any actual ‘fun’, training, instruction or membership of anything, however long we’ve been funding that sort of thing, or promising that it’s part of personalisation – it’s not social services if it’s therapeutic! Go ask your GP….
• If you’re a carer, you will have to make do with a set sum of money for meeting your support needs, because that’s what we’ve always done…
• If you’re a person with a learning disability you have to live in shared care even if that means moving into a tenancy towards which we can only point you … and you can’t use a DP to choose any other care agency than the one that’s there at the ‘scheme’ whom we’ve appointed….
• You can only have a direct payment if it saves us money … and we give everyone the minimum wage, whether or not they want to be a direct employer;
• Relatives can never be paid out of the direct payment, to do the care, even if we’ve managed the market so badly that there’s no agency with any capacity, nor anyone willing to be a PA, for minimum wage, for miles around…
• We can sue the direct payment client’s helper, in their own name, for mismanaging the money, when we ourselves overlooked the inconvenient detail that the client lacked capacity to sign the direct payment agreement, and we didn’t bother with making the helper into an Authorised Person under the regulations…
• Your relatives will have to pay a top up to keep you here in this posh home, when your capital depletes under the threshold, because we never pay the full rate of a home when it’s above our rate and we can move anyone who needs social services, regardless of the distance
• We can cost-cap the level of services we should offer you in your own home, to whatever the cost of any other way of meeting your needs would be, that we can think of … regardless of its suitability, its availability, your needs, your well-being, your wishes and feelings, your human rights and your best interests consultees’ comments on what you’d think of THAT!
• If you disagree with the budget, we don’t have to give you a service in the meantime, even though your needs have been found to be eligible…
• The CCG Panel makes the decisions about CHC, around here, regardless of what the MDT has scored or recommended – and the Fast Track patients often die before the commissioners manage to sort out care
• We don’t do joint funding around here, if you don’t qualify for CHC – it’s illegal….
• If you complain, we suspend the care planning process until that complaint is closed
• The complaint system is the only remedy for a disagreement over a care plan
• We tell you, the providers, what to sell, and what the price of care ‘is’, and you all have to accept our prices, because we can put you out of business.

I look forward to seeing the report, but I am not holding my breath, because legal literacy is not yet an integral part of either the culture or ‘relational value base’ in health and social care, in my professional view.

In the meantime, if anyone wants advice about how to challenge any of the above stances, I offer training in Difficult Conversations, and give advice to individuals and organisations about what can be done if you’ve been affected by dubious decision-making on the part of statutory health or social care staff. I can be contacted by way of belinda@careandhealthlaw.com or on this site.

Mr Davey has (not surprisingly, it has to be said, with all due respect to his legal team) lost his case. It is important that service users and social workers and advocates should understand why, I would suggest.

The facts of this man’s case are set out in an earlier blog post on this site (Search Luke Davey in the search box) so I won’t go over them again.

Suffice to say that Mr Davey was assessed and planned for (after the ILF element of his package was terminated) on the footing that he could, in the Council’s view, safely spend more time alone without the benefit of a personal assistant (PA) being present. Secondly, it was determined that he both could and should reduce the amount which he chooses to pay to his PAs, who were largely members of his own family.

Mr Davey had indicated through lawyers that he was not willing to accept the reduced weekend rate, the reduction in the day rate for the two main carers, nor the payment at standard rate on bank holidays. The council’s position was that as regards carers’ terms and conditions, there was no evidence that carers would leave – as the two main carers had withdrawn their resignations, and the minimum wage of £7.20 and the £40 night shift rate were compatible with rates many other service users were paying.

It is important to note that the care planning for time alone for Mr Davey before the case was started had been suggested to be phased in and to increase gradually.

The plan had extended the duration of such periods from 2 hours, once a week, to 5 hours on 4 days a week, and 5.5 hours alone on 3 days of the week, costed out on the rates for PA attendance, from time to time, not live-in care. This time alone would go up, eventually, to 6.5 hours a day. At the outset of the phasing / tapering period there was to be care for 19 hours per day, reducing to 17.5 hours from January 2016 onwards.

From May 2016, the hours of care per day were increased slightly to 18 hours and the weekday rate was increased to £7.20 due to the increase in the minimum wage from April 2016, but the weekend rate was further reduced to £9 per hour.

There was thus no increase in the personal budget.

These suggested timings as part of his revised care plan and budget were because the assessor and planner thought that Luke “risks loss of independence and autonomy as although he lives in his own home, he has become dependent on carers and family to meet his needs”.

In the next column of the documentation for care planning it was said that this risk could be: “Managed by carers encouraging Luke to do as much as possible for himself, within safe limits. …”.

The council specifically denied that its view of the right time for him to be left alone, had been driven or constricted by funding (which is perhaps hard to believe when the hours went up but the rates went down and kept the budget within the initial planned limits!).

The grounds for appeal, and the Court’s approach:

– The council had failed to consider the effect of the Claimant being expected to spend three periods of two hours per day alone upon his ability to engage in social activities; that constituting a breach of Section 1 of the Care Act 2014 or another unlawful act of some sort;

– Mr Davey contended that anxiety from being alone was not identified as a risk arising from any reduction in carers’ time. So it was alleged that the council did not have regard to the need to ensure that decisions about the Claimant were made having regard to all the Claimant’s individual circumstances and thus did not act in compliance with its duty under Section 1(3)(d) of the 2014 Act;

– The Defendant failed to evidence its contention that the proposed rates for personal assistants providing care to the Claimant were reasonable or compatible with its obligations under the 2014 Act.

Since then it was reported that Mr Davey does now successfully spend three periods of two hours each day alone; and also that two new carers have joined the Claimant’s team, each paid at the (current) minimum wage of £7.50 per hour.

The Court was clearly impressed by the first instance judgment, as appears here, in a passage where the Court confirms that the legal framework in the Care Act does indeed have implications for the lawful practice of adults’ social work teams and care management staff:

52. The judge (Morris J) made the following observations on this sub-section with which I would agree. First, the assessment duty is a duty upon the local authority and the assessment under s 9(1)(a) and (b) is an objective assessment made by the local authority (usually acting through its social workers or occupational therapist). Secondly, under s 9(4), there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on well-being matters set out in s.1(2)), then there is a breach of the statutory duty.

That confirmation is GOOD for anyone interested in the rule of law in adult social care, it is suggested, and together with the Merton judgment, covered in another post on this site (search Merton in the search box) makes it easy to challenge an indefensible assessment, at least by those who take the time and trouble to use the legal framework.

The UN Convention point – on independent living rights in article 19

Mr Davey’s lawyer got nowhere on this point either, and neither did the third party interventions by way of written submissions from the EHRC and the charity, Inclusion.

The judge had found that it was irrelevant because there was no ambiguity in the Care Act which admitted of even interpretative assistance by reference to article 19, the UN Convention being merely an unincorporated international treaty which, absent incorporation, creates no direct obligations in UK domestic law and setting out aspirational provisions which cannot qualify the clear language of primary legislation.

“Mr Burton did not argue that there was any error in the judge’s conclusion that Article 19 of the UNCRPD did not assist the Claimant’s case.

I have set out the judge’s conclusions on this topic only because the EHRC, in their written submissions lodged as interveners in this court, argued that “the decision of the Respondent in this case, and the judgment of Mr Justice Morris upholding that decision, goes against the principles of Article 19 of the UNCRPD”. I need say no more in the present case than that, with respect to the EHRC, the judge’s analysis seems to me entirely correct.

But this should not prevent the argument being advanced in a future case where it is the subject of adversarial argument by the parties.”

The issue about the consideration of the impact of a change in care regime

The judge had agreed that the assessment finding that a major change would carry significant risks in fact represented Ms Lovelock the social worker’s view and not only the Claimant’s own assertion.

This Court agreed that the reference to a “major change” which in her view would carry “significant risks” was a change to a live-in carer rather than a change in the team of PAs, which was not a change in regime to which the council had actively tried to budget down.

Like the judge at first instance, this Court was of the view that the budget was based on a team of PAs, not necessarily the current ones preferred by Mr Davey.

The social worker had explained that she thought that changes in the Claimant’s current care team would be positive for the Claimant and his emotional wellbeing, enabling him to reduce dependence upon specific carers. This would be unsettling in the short term, but bring important benefits in the longer term.

This Court agreed that this would have been inconsistent with a concern about significant risk, but that was explained away as having been about a potential change to a live in regime. This Court was quite satisfied, as had been the first instance judge, that the view about the positive implications was a genuinely held view. The lead judge (Bean L.J.) said this:

“It does seem counter-intuitive to me, at least if one is referring to a complete or substantial break-up of the team who have looked after the Claimant for so long; but I am not an expert in the field, and I cannot possibly say that the view expressed by Ms Lovelock is irrational. In any event, if the judge was entitled, as I have held that he was, to find that there was no sufficient evidence that the existing team of PAs would break up, the issue of whether or not that would be a positive move in reducing the Claimant’s dependence on them, simply does not arise.

Lady Justice Thirlwall added this:

“Like Bean LJ, I find it difficult to see how a change in the team could be thought to be beneficial but in the light of the judge’s findings about the likelihood of this I say no more about it. The very significant reduction in the Claimant’s personal budget was reached at the end of a lawful process, as the judge found.”

The day trips point

The Court said this:

“83. In an early witness statement Ms Lovelock stated that “it is only during the proceedings that the issue of Mr Davey going on day trips has been raised”. There is a degree of ambiguity in the phrase “day trips”, but if it means trips lasting all day, it is right to say that such trips, other than to the Claimant’s parents, hardly feature at all in the contemporaneous evidence. The judge was entitled to make the findings of fact which he did in the paragraphs just cited, and on that basis to reject the claim under Ground 2c.

The minimum wage point

As regards how much to pay PAs, the Oxfordshire guidance for Direct Payments had stated thus:

“You must pay them at least the national minimum wage. On average, the typical hourly rate for a Personal Assistant is around £8.50 during the week and £11.05 at the weekend. …”

The national Care Act guidance says this:

“11.25 The Act states that the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs.
In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needscan be obtained for the amount specified in the budget.
To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.”

It may be that Oxfordshire would have liked to pay more than the minimum wage, and the judge had noted its own guidance found that a typical rate was in fact higher. But the judge said this, after the cuts had bitten on the council’s own ability to do what it would have liked.

“81. No one could criticise Sue Davey’s opinion that payment at minimum wage rates is a poor reward for a carer of her quality and experience. But as the statutory Guidance makes clear in paragraph 11.25 cited above, a personal budget should reflect local market conditions. The judge was plainly entitled to accept Ms Lovelock’s evidence about local market conditions in the area of the Claimant’s home, together with the indication that if those conditions change the Council would be bound to revisit the issue. The Claimant is in effect saying to the Council “(a) some of my carers are not prepared to work for the local going rate; (b) therefore, in order to maintain the continuity which I value, you must set my personal budget at a level which enables me to pay them more than that rate”.

I do not consider that it is unlawful for the Council to decline to do so. Ground 4 therefore fails.”

Commentary regarding the rates being paid for direct payment users

Readers should take special note of the emphasis in bold and italics before despairing about the rates being offered locally, by other councils in direct payment discussions.

This doesn’t mean that the council can ignore law or the evidence about the going rate, if it is higher than the national minimum, by dint of local determination on the part of providers; and nor if the specialist needs of the client are such that the minimum wage sort of employee isn’t going to be able to be seen to be competent in providing appropriate care to meet the actual needs of the individual in question.

The best way to draw this out is to demand a care plan should be produced, as per s25 of the Care Act, showing how the council would itself manage to commission appropriate care for the cost being offered, after allowing for the effect of direct employment savings, if the potential Direct Payment purchaser is going to become a direct employer and not use a DP to pay an agency, it is suggested.

Neither does it mean that the council can set a budget at a rate which disincentivises people from ever taking a direct payment, ie, paying less than the market would charge an individual purchaser, and only offering to pay that which a council would pay for a bulk/volume service from an agency trying to stay in business – because in taking such an attitude, the council would be wanting the benefits of getting people off of its books, whilst not taking into account the obvious and rational reasons why the rate to a person buying on their own might well be more than it would be, to a council buying in bulk.

And finally, this case cannot make it legal to deter a person from remaining on a direct payment by an offer ONLY to pay for the new interpretation of the minimum wage counting rules about night time work, ONLY if the client uses an approved provider of the council. The conditions that councils can lawfully attach to direct payments do not go that far, in the context of a direct payment being intended to maximise choice and flexibility, it is suggested.

Well, what do you know? It seems as if community care law is still in existence, and needed, even – as a measure of accountability, in very difficult times! Councils have a legal obligation to keep up staff’s competence, and will thus have to ensure that the message is properly conveyed, to both senior and front line staff. Does anyone want a webinar? 🙂

Merton – in a decision of Anne Whyte QC, sitting as a Deputy High Court Judge – has apparently ignored many long-established pre Care Act principles and has consequently lost a case about assessment under the Care Act, setting a precedent about what makes for a lawful assessment. Here is the link to the judgment, and analysis follows below: Merton judgment about Well-Being and Assessment

The case holds no real surprises but is a useful precedent for anyone looking to write to a council’s Monitoring Officer about poor practice regarding assessment duties. The old cases of Killigrew, against Birmingham, and Savva, against Kensington & Chelsea, could have been relied upon without going to Court, perhaps.

Lessons for funding panels, and review team assessors

The case also underlines the ‘building block’ approach to a lawful assessment, with recording of views about x, y and z, under the Care Act, all being a necessary part of delivering a proper assessment to care planners, and proving that one has had regard to and taken account of all the necessary features of a person-centred assessment.

So a decision to terminate a placement and move a man from his current placement to a setting where there was no specialist multi-disciplinary team, after years of his being able to access such a service, without any evidence basis identified for a decision that one was no longer needed, was clearly unreasonable. The Killigrew case had settled that as a principle, before the end of the last century!

I think that the most important lesson emerging is for Funding Panels, harking back to the Savva decision, pre-Act.

That case established that the Panel’s written reasons for regarding its job as done, when it signs off a disputed budget and plan, are necessary as an aspect of procedural fairness. Neither the Care Act, regulations, guidance nor even this case goes quite so far. However, the judge used the absence of any clarity about the Funding Panel’s personnel, scope of delegated authority, policy or processes, as going directly to the unlawfulness and unreasonableness of the decision.

The facts

The man in this case, JF, is in his early twenties, and has Autism Spectrum Disorder and severe learning difficulties. He is non-verbal and requires alternative communication techniques to assist with his basic communication. He is highly anxious and this is exacerbated by any change to his routine or environment, however minor. His emotions and behaviour can be disinhibited and he regularly tries to abscond. He is at risk of self-harm. As a result, he requires adult residential care with specialist support.

A specialist college had appropriately met his needs to date, and the council had funded his access to an on-site multi-disciplinary team for some 15 years, including occupational therapists, SALT therapists etc.

This was what the council decided would not be needed, and thus why it was necessary to move the young man, as the cost of maintaining that team was no doubt part and parcel of the provider’s costing model.

Merton prevailed upon a care home provider candidate which it had somehow identified BEFORE any Care Act process, to do a Pre-Admission Assessment. The provider’s document was supposedly designed to identify the needs of each service user at the pre-admission stage. The provider had concluded that it was suitable and could adequately meet the man’s needs.

This was of course a decision that any provider has to make in some shape or form, to meet CQC expectations that providers don’t take on people they are not competent or sufficiently staffed to manage; it may also be useful as part of the first stage of a tendering process, to ascertain capability, but it is not a Care Act assessment.

His parents were concerned that any transition to another accommodation and in particular to the provider favoured by the council would not only risk a serious reversal of the slow progress that their son had made at the College but that it would also harm his emotional, physical and psychological well-being and place him at a higher risk of being made subject to a MHA detention order. The family visited the proposed placement and came to the conclusion that it could not meet their son’s needs. From their perspective (and the College’s), their son was doing fine and should have been able to stay at the College because it also had adult provision to offer.

By June 2016 the situation appears to have been that
i) LBM had said that JF’s placement would terminate;
ii) LBM planned to move JF;
iii) an alternative service provider had deemed itself by 26 February 2016 a suitable provider to meet JF’s needs;
iv) LBM agreed that that provider could meet those needs; but
v) LBM had not yet authorised funding for the new placement.

Matters (i) to (iv) all occurred before the completion of any Care Act Needs Assessment.

Some thought was given to a short residential assessment – ie moving him to the potential placement for a trial. The parents considered that it would not be in his best interests to have his routine dramatically disrupted for the sake of such a short-term transition and in circumstances where his likely disturbance would affect the quality of the assessment. They therefore declined this offer. It is not submitted that this was unreasonable.

The parents suggested that the provider’s staff re-visit their son at the College and conduct a fuller assessment in order to establish whether or not they rally could meet his needs; Merton refused, because it was considered that an adequate assessment on site had already taken place as reflected by the provider’s pre-admission report.

The arguments

The man’s lawyer asserted that the process followed was a wholly inadequate basis for moving someone from their current accommodation.

The council predictably contended that no final decision had yet been taken about the man’s future placement, because such decisions were made at a funding panel level.

They also tried to argue that an assessment was not even a judicially reviewable decision!

The barrister for the council suggested that ‘it had been assessed that he did not need on-site multidisciplinary access’ but there was no evidence of an assessment of that question ever having taken place; nor was the judge told when or who had decided that.

In my view that starting point for re-commissioning is bound to have been a budget-led edict, when management last looked at the state of its departmental budget. It is commonplace for review teams to be given ceilings or targets in advance of care planning, but that trend cannot translate into a wiping out of previously assessed needs without a new evidence basis. This judgment says that that sort of question can’t be concluded, formally, without a lawful Care Act assessment.

The findings of the judge:

The judge referred to the findings in the Davey case earlier this year:
Section 1(1) and (2) impose a distinct duty upon a local authority, in each individual case, to promote the individual’s well-being, including for example physical and mental and emotional well-being (or, as here, access to suitable accommodation).

Section 1(3) contains a separate “have regard to” duty to a further set of matters listed therein.

If the relevant local authority does not assess the matters specified in section 9(4), including the impact on “well-being” (as defined), then there is a breach of the statutory duty.
This means that the assessment must determine how those assessed needs impact upon one’s mental and physical and emotional wellbeing and the implications of that impact on the suitability of accommodation that may be required. (See section 13, too, for a duty to consider what COULD be done to meet needs, before care planning commences).

Councils have a mandatory duty to identify and record a person’s desired outcomes in the context of the section 1(1) duty to promote “well-being”. There is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes.

This judge, here, also adopted and summarised the Davey Court’s conclusions as follows:-

First, where there are specifically factors required by law to be taken into account, a failure to take account of such obligatory factors will necessarily invalidate the decision.

Secondly, where there are other factors which may be taken into account (or indeed which others or the court itself would have taken into account) a failure to take such factors into account will not vitiate the decision.

Thirdly, there is a class of factors which ought to be taken into account. Here a failure to take account will vitiate. Such factors have variously been described as “relevant” or “clearly relevant” or “so obviously material” to the exercise of the particular discretion such that they ought to be taken into account.

She reiterated (as is already well established) that the proof required to show unreasonableness must be convincing. The claimant must demonstrate an error, or errors, of reasoning which rob the decision of its logic. Given this man’s permanent vulnerability and dependency upon care and support workers, however, the intensity of review required in this case is high level review, not arm’s length.

The judge regarded it as clear legal principle that:
• If the Assessment failed to assess the impact of the client’s needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act, then it is an unlawful assessment.
• Likewise, if it failed to assess the outcomes that the man wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes, it is unlawful.
• If it fails to have regard to the matters specified in Regulation 3(2) of the assessment regulations, it is unlawful.
• If the assessor fails to have regard to the wishes and preferences of the individual (expressed here to a degree by his parents), then it is unlawful.
• And if the Assessment is neither appropriate nor proportionate then it is unlawful.

The judge did allow the submission that an Assessor is not under any explicit duty to explain in a Care Act Assessment document, why he or she disagrees with anything contained in such reports or with the views of parents etc. The conclusions reached were set out, and the material on which they are based was identified, and that is a legally sufficient approach to an assessment, but, the judge said, always subject to the conclusions being rationally based on the material.

The decision to terminate

The judge concluded that despite the fact that the Funding Panel had not met, the council had formally decided to terminate the man’s current placement at the College.

The combined effect of the language used in the statements for court, and the late care plan, and the steps taken was one of decision rather than undecided planning, implementation of which had merely been deferred.

As to that decision, the judge said that the decision to terminate the placement could not be said to be rational. It had been made before his needs had been conclusively assessed under the Act and on any view, before the preparation of the Care and Support Plan. In those circumstances, it was difficult to see how the decision could have been made in compliance with any of the statutory duties contained in section 1 and 9(4) of the Act and in Regulation 3 of the Assessment Regulations.

There was no evidence before the Court justifying the decision to terminate. No reasonable local authority would terminate the placement of someone with such complex needs without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available that would enable them to meet his needs.

Looking forward from the identification of needs, to actual care planning:

In relation to the arrangements for any future move, the judge found that an Assessment under section 9 is not required to deal with the detail: the Care Act Assessment is designed to be a statement of static current needs, not how such needs should be met or changes in the response. It must consider the effect of his care and support needs on the suitability of his accommodation, not how he might move to and from any such accommodation.

But the judge confirmed that that would be part of care planning: because then, the council would need to promote his well-being under section 1 and would have to manage any transition in a way which complies with section 1.

Where a duty to meet needs arises, councils must, under s24 (1)(a) of the Act, actually prepare a care and support plan – here the plan was not prepared until well after the proceedings were commenced. The plan was not actually the focus of the case, but the detail was relevant to the adequacy of the prior assessment and the rationality of the assessment conclusions – pre-cursors to care planning, many would say.

When Merton’s barrister was asked if Merton had already decided that its preferred provider could suitably meet the man’s assessed needs, he acknowledged the ‘impression’ that such a decision had been taken (in particular by the social worker/s responsible for the Assessment), but said that no decision about the provider’s suitability had been taken at “corporate” level because no decision had yet been made about funding the placement. This meant, he contended, that the provider placement was merely “on the table”.

The judge at trial had been shown various independent reports which she thought supported the contention that this man NEEDS an on-site MDT, total communication environment and detailed and long term planning for any change in placement.

The care plan may well not have been signed off, but the work of care planning had certainly been done by the social worker: her statement, however, just stated that the local authority had decided that its client did not need an on-site MDT or a TCE. The only evidence about the decision concerning these potential needs came from Ms Singer; she stated that there was consultation and advice about this and the outcome was that the “local authority” decided that he did not require an on-site MDT and a TCE. It was therefore not stated that it was HER professional view.

The judge was not provided with any evidence about how the funding panel operated or any written policy and procedure distinguishing between the significance of decisions by social workers and decisions at a corporate level about placements of this nature. The decision-making process behind the conclusion no MDT/TCE was needed, was not particularised and the decision maker/s not identified.

The judge said that the council might well be entitled to conclude that he did not need MDT or TCE, but only on a lawful and rational basis. As it is not possible to tell when the decision was made that he did not have these particular needs nor by whom, it was not possible for the Court to be satisfied that the parents’ views (and the client’s wishes) were taken into account. In this assessment, omission to deal with the subject prevented any reader from understanding whether need for an on-site MDT/TCE was actually considered and rejected, or simply not considered at all.

It was also impossible to know whether in this respect, the defendant had regard as required to the desired outcomes for the man, or whether it assessed the impact of his MDT needs in the context of his well-being and suitable accommodation. But if he didn’t have those needs, it would be a departure in the type of service provided to the man for the last 15 years….

In legal terms, care managers either make recommendations to panel, who are the decision-makers, or they make decisions which a panel might audit but not overturn, perhaps thinking it better to save the panel process for dispute resolution if someone challenges the adequacy or legality of the package. My long-held view that Panels should be asking staff to come to panel with TWO recommendations, and not merely one, so that Panels can do what they were born to do, which is exercise discretion, in their own senior professional names, for rational reasons, chimes nicely with this case, I feel.

The wondrous conclusions of the court for this client, on these facts – even though a council COULD make the same decision, second time around, please note:

“I am satisfied that the defendant failed to comply with its duties under sections 1(1) and (3) and section 9(4) of the Act. The decision was not reasonable in the Wednesbury sense. Accordingly the Assessment was not lawful. Any re-assessment of JF’s needs must be based on his current situation and not conducted from the position that his placement is no longer available to him.”

Readers will have been poring over the Law Commission’s proposals since March 17th. They clearly represent an improvement on the first and second iterations but I think that there are some serious difficulties with a few of the underlying assumptions, and in this post I will focus on just one, having reviewed the positives.

Of course there are many practical and good points in the report:
– the inclusion of all settings, by dint of removing the link with any specific sort of setting;
– the inclusion of 16 and 17 year olds, regardless of where they are living;
– the bonding together of community care and health law planning functions and MCA decision-making, because it should always have been thus, given that a refusal to accept care might always have been an incapacitated one, requiring a best interests decision by the council or CCG;
– the placing of the responsibility for authorising DoLS where it should always have lain, ie with the public bodies bearing the duty to the person in the first place, for appropriate meeting of their needs;
– the ongoing inclusion of people without seriously aggressive tendencies within the paper based regime, even if they are capable of being seen as having a mental disorder;
– the broadening of scrutiny to the nature of the arrangements in total, and not merely a focus on the narrow question: does this regime amount to deprivation of liberty?;
– the extension of authorisations to respite settings and all sorts of transport and temporary arrangements.

The Law Commission heard from many consultees that the DoLS don’t work in practice because a council will only offer one sort of a setting for care, as a result of resources difficulties, such that there is no real scope for a BIA to say that DoL is not necessary and proportionate. Examples are given where the council refuses to meet the needs in the person’s own home, because of the cost, and the only choice is between an unwanted care home and less care than is needed in one’s own home.

Instead of exploring the role of the BIA, and the scope of the assessment required of them, and the underlying public law framework as to what would be a lawful alternative offer, the Law Commission has simply accepted that as the legal truth and then moved on to getting rid of the roles of the Supervisory Body, and the BIA and tweaking the proposed role of the Approved MCP, adding in an Independent Reviewer, en route, for simpler cases, whose role is simple audit of the paperwork.

This approach seriously underplays the possibility that an offer of a care package that is not adequate to meet needs would not be a lawful offer to make to a person who was withstanding persuasion to go into a care home. If an AMCP isn’t to be allowed to say that, then calling an AMCP independent makes a mockery of any notion of professional values and integrity, and yet it will be social workers who’ve still GOT those things who need to be AMCPs!!

The Commission could have adopted the approach in the KK case, where the CoP judge used the absence of spelt out practicable alternatives to the care home, as the bare minimum for a competent decision on incapacity in the first place, to refuse to authorise deprivation of liberty. Funding Panels should always have been considering the choice between two alternative adequate options in deciding best interests, not deriving a package from a budgetary ceiling, or telling social work staff to present ONE option for approval.

If one plays out the care home vs home care possibility in the context of an application under the new LPS, the independent reviewer would just do the review on the papers, and the Approved MCP would do a real review, including making a fresh determination as to whether the conditions for an authorisation are met, as a human rights public body in their own name, by dint of their statutory role.

The suggestion that this should be done without regard to resource considerations is in my view even less than a BIA can currently do. A brave BIA would never regard a regime of DoL as necessary and proportionate if there was a less restrictive option that would cost the commissioner ONLY a BIT more than was currently being paid. A brave BIA would simply refuse to say yes to the authorisation, and that would stop the DoLS authorisation.

I absolutely endorse the findings of the Supreme Court in N this year that the CoP is not the equivalent of the Administrative Law Court, and cannot exercise a supervisory jurisdiction over the rampant cost-saving wheezes often presented by councils as lawful care packages; but the CoP is as much a public authority as any other court and under the Human Rights Act, in this country, it has no right or capability to make best interests orders about packages that are not in accordance with the law of this country.

I therefore take the very firm view that a package being offered by a council that would be judicially reviewable in the Admin Court cannot be foisted onto the CoP as the only offer for the judge to have to say yes to, just because it is not in breach of a person’s specific human rights with regard to a pleaded s7 point.

I am not, please note, saying that the fact that it wasn’t in someone’s best interests, makes it unlawful in public law terms, in the CoP: I am not suggesting that the parents were acting rightly in trying to challenge the adequacy of the package by asking the CoP judge to determine whether it was in a person’s best interests first, in the CoP. I know enough public law to know that a public law decision is valid until it is declared otherwise.

What I am saying is that IF a package is seemingly indefensible in public law terms, (whether or not anyone has issued JR proceedings in the Admin Court, prior to going to the CoP, and whether as defendant or applicant for a CoP order), then a CoP judge has no power to lend best interests legitimacy to an offer of care that could or probably would be invalid for unreasonableness, illegality, procedural unfairness or a breach of human rights. The CoP judge cannot be put in that position, in my view, BECAUSE the package contents being in accordance with ‘the law’ is a pre-requisite for the exercise of decision making functions not resulting in an unjustified interference with article 5 or 8 human rights.

So, likewise – if an AMCP thinks that the package being offered offends against public law, I do not believe that she or he can legitimately put forward support for an LPS authorisation without abandoning his/her statutory purpose and function. It is a distinct decision-making role, not mere audit.The AMCP has no jurisdiction to make a decision that is not in accordance with the law.

If this degree of independence is intolerable, but nobody can come up with a set of steps that should and could be taken by the AMCP, then the LPS begin to disappear behind smoke and mirrors.
Where’s the best forum for all this accountability?

The irony is that no decision has even yet been made about whether a tribunal, versus the CoP, is the right forum for DoLS disputes in the new era. The obvious way of dealing with the converging systems of public and private law (for private law is what the MCA is actually all about, defences against torts of assault and trespass, after all) then one MUST have a tribunal, which can have an appellate jurisdiction based on error of LAW, as well as taking decisions of a CoP nature. Once one has got that far, one will HAVE to allow for an appeal against a care package, whether or not the issue involves MCA considerations.

Against that backdrop, and all of a sudden, because of the election, fresh mention was hurriedly made by the government about ‘a cap’ on care costs – presumably the same sort of a cap as envisaged by Andrew Dilnot. The implications of the Dilnot vision had already convinced the government that some sort of an appeal system would have to be created – for all those middle income people not happy with their first ever social care allocation or decision on eligibility when they’d been to the council to get their meter started.

The idea that one would be able to challenge one’s care plan on MCA grounds, to a tribunal, or to the CoP, but not challenge the rationality of one’s care plan, in even a formal appeal system to an outside decision-maker, or have to use judicial review, makes no sense to me.

A tribunal for ALL health and social care matters, where principled decision making is the heart of the job, would seem to me to be inevitable, now.

I have just heard of a CCG – owing formal Fast Track duty CHC services to a person in a deteriorating phase of a condition that could be terminal – suggesting that it can only pay for 56 hours a week of care, unless the family pays for night time care privately, or otherwise the person will have to go into a care home.

When asked for confirmation in writing, that 56 hours was a maximum, and that the CCG would leave the family to pay for night time care beyond the value of 56 hours, themselves, as if having needs at night could just be ignored, because of it being dark(!) and what was the legal source of the power to have any such policy, please? – the clinical assessors said that they could not do that.

I am not saying that there is a right to stay in your own home to die, on CHC. I am not saying that a person can just hold out for the care that they WANT, rather than the care that they are assessed as needing, simply based on preference. This is all funded out of public money…

BUT I AM saying that this CCG’s stance is the kind of stance that could be used as a platform for high profile and embarrassing precedent setting litigation on the basis of any number of public law principles that will be familiar to anyone who is already legally literate in this field:

a) it appears to be a blanket policy about the most that people owed a legal duty ‘need’ – without regard to the professional clinical assessor’s view of the individual’s actual needs – ie a budget led assessment, not a needs led one…

b) another way of seeing this is that it’s a blanket refusal to provide services to people with needs, at night, because of the commissioning inconvenience that care costs more at night.

c) it does not admit of any possibility that patients might be at a point in their condition whereby meeting their needs in a care home, as opposed to doing so IN their own home, would be an indefensible decision by a professional: for example, where it would be highly likely to de-skill them (ie final stages of recognising where one is, with dementia), trigger a psychotic phase (eg ignoring the effect of others on a person with a brain injury and a need for calm and quiet), separate a couple who still like each other after 50 years of togetherness, or who are genuinely co-dependent), or force a young dying parent to be separated from children for the last months of their life.

d) it ignores the fact that a person without mental capacity would still need a best interests decision by the CCG even if they themselves could not say no to the offer of a cheaper solution, a placement in a care home – because relatives DON’T have the right to obstruct access to services by refusing what’s offered, on behalf of someone else: the state still has a duty to decide what it is bound to DO!

e) it ignores human rights considerations, particularly article 8 rights – which although limited, still require to be conscientiously weighed against the costs of meeting the needs in the person’s preferred setting – and ‘conscientiously’ here, means carefully and with regard to all relevant considerations, and (of course) regard to an individual’s situation – not the knee-jerk application of a rule made up by a finance director.

f) it ignores the National Framework Guidance on working out what the CCG’s offer should be, starting with the individual’s preference – the guidance has been worded to allow for wriggle room, but it is still guidance which must be followed, unless the CCG wants to identify a really good reason why it should not!

g) it assumes that there will actually be sufficient care home places in the area for less than the cost cap, in which to pop people owed a duty – regardless of the challenges that might be involved in caring for the person in question – a potentially unsafe assumption nowadays, since care homes are beginning to ask ‘What’s the point?’ and throwing contracts back at public body purchasers…

h) it appears to regard Fast Track CHC arrangements as somehow separate and distinct from ordinary CHC packages, indicating a determination, perhaps, to review people smartly OFF of that status for free care services, in a few weeks time, if they still dare to survive!

so, CCGs have been warned – they need to get more legally literate, through training or legal advice, if they are going to stay out of the judicial review courts.

The guidance suggests that disputes about the content of a CHC package should be taken to the NHS complaints system. Unfortunately that overlooks the fact that in England, allegations of illegality, instead of incompetence, have always been allowed to be taken direct to the judicial review court.

The Conservative Party’s proposals on social care [DID!] revolve around aligning the means testing rules for domiciliary and residential care charging.

Firstly this will mean that one’s share in the value of one’s house will be counted in the calculation of one’s means, even though one is still living in it – and needing to spend money on it, and despite living there alongside a partner and other family members. This will increase, markedly, the number of home owning and needy people, more of them elderly than any other kind of client, being charged significant or full cost for their care for the first time. It will make it much less sensible to pay off one’s mortgage, too!

The manifesto does not say anything about disregards of the house, or even about the State waiting for repayment where surviving partners or other family members living in the house are concerned. Jeremy Hunt must have said something about that in trailing the proposals the night before on TV, so he may know better – but if there is no provision for that disregard and deferral until other people’s later deaths, it stores up a tremendously divisive issue for the consultation that would have to be conducted first (well, AFTER the election, no doubt).

Secondly, it is proposed that everyone will be left with as much as £100,000 and receive care ‘for free’, after depletion of one’s assets to that much higher level than the current minimum threshold of £14,250, below which care is not paid for out of one’s capital at all.

The £100,000 referred to is to be ‘the floor’, according to the manifesto – not the ceiling, meaning that nobody will be paying for services out of capital with less than that sum. This section is replete with confusion.

Nothing was said about paying out of ongoing received income, as happens in a care home setting: Mrs May said ‘NOTHING will be paid [by elderly people] whilst they are still alive’ when launching the manifesto – so that aspect of the proposals will need careful attention at consultation.

The absence of any detail about an upper ceiling (if this is the floor) is puzzling: Mrs May referred to the new threshold as quadrupling the current one – seemingly referring to the UPPER threshold of £23,250. But that is not the point at which care becomes FREE at all (whatever journalists insist on writing in so-called ‘briefings’); it is the point above which one pays the FULL cost of one’s care in a care home, instead of getting ANY local authority subsidy, via a charge from the arranging council, for LESS than the full cost – and above which, one CAN lawfully be told to go off and buy it for oneself (unless one is mentally incapacitated).

So, either there has been a mistake there in the manifesto writing, and the new threshold is meant as a ceiling, below which one’s capital will still be counted as tariff income and thus relevant for ongoing charges for at least a further period, until one reaches a MINIMUM threshold – or it really is meant as a floor, and no ceiling is planned. That would make no sense.

Thirdly, the manifesto suggests the option of extending deferred payments for care, to cover home care costs – so that one can consent to placing a legal charge on one’s house for securing the loan to cover the cost but still stay at home and receive chargeable services, there.

However, these schemes can already be extended to home care, under the Care Act 2014 – in the discretion of the council, for that purpose, as well as for residential care, albeit that the value of the house is not currently counted. It is thought that the reason they are not used in this way, in practice, is because councils cannot afford to pay for care up front, at the low level of interest that the deferral is allowed to attract. We have heard more this week from various finance bodies saying local government would have to be allowed to borrow in order to finance this level of contracting up front for people for ALL that care – care home AND home care. It is hard enough for them to meet the demand for deferred payment schemes for residential care clients, and nothing has been said about the funding for local government of this new proposed level of loan under-writing obligations.

Fuelling deprivation of assets disputes?

The alignment of the two charging schemes immediately presents a strong incentive to pass the equity in one’s house ON to one’s closest relatives, before or very early on in one’s deterioration or concern about the future, and a nationwide crossing of one’s fingers that one’s offspring will ‘do the right thing’, if one becomes needy. The way in which a trend in that direction would fit with rules on tax on discretionary trusts set up during one’s lifetime is also a very difficult topic – a field day for lawyers.

The alternative is having faith in the idea that the State will still provide what could still be described as a decent safety net. If no changes to funding going INTO the sector are made alongside these proposals, that would be a risky bet for middle-aged Middle Englanders, of whom I am one!

Getting rid of one’s lifetime security, in order to preserve it for one’s offspring, will also give rise to more widespread accusations of deliberate deprivation of assets – and legal difficulties – because aligning the two charging systems would mean extending the current residential only ‘deliberate deprivation of assets’ provisions into the lives of less dependent people who are still trying to live normal lives in the community – where their money remains, in theory, their own, to spend as they like.

When people do choose to rely on the council for home care, they must still be able to spend their own money on their less pressing needs, or wants, and contend that it should be counted as disability related expenditure and thus get their charging assessments reduced – a point not covered in the manifesto, and one that will fuel much controversy, in practice.

The proposals would necessarily entail two further changes: regular revision of one’s financial assessment by reference to how much one actually has left, instead of notionally left – meaning many more charging officers need to be employed – and a proper national policy on the extent to which one can legitimately carry on treating oneself or one’s relatives to nice things and experiences, once one needs care.

This doesn’t sit well with the duty in the Care Act to promote well-being in all that a council does!! It doesn’t sit well either, with the Conservative ethos of ‘small government’!

This focus on who’s disposing of, or spending money, and how, and why, all the time, will likely turn councils into the enemy of many MORE of the people whom they are trying to support with care – the antithesis of the intentions of people who framed the Care Act to encourage people to look at the Council as an expert friend when in need, for everyone, no matter what their asset base.

A journalist asked Mrs May what the justification was for different financial consequences for people with parents suffering from dementia as opposed to those whose parents die suddenly of a heart attack, and she did not actually reply. That is where the reference in the press to a dementia tax comes from.

Another irony is that the well-off, with any chance of leaving £100,000, will probably take actual note of these provisions, whereas when the threshold was a very low one, the thought of turning to the State was probably not on their radar at all. The provisions and the very public debate about them, NOW, may well alert the better off to the financial advantages of claiming NHS Continuing Health Care, as a means of scotching the social care charges altogether – especially in cases of chronic long term degenerative diseases such as dementia.
That is not what any health and social care integration project really needs right now, as conflicts over a bright line between the two statuses are the very quickest way to personality-driven hostilities between generally poorly informed staff at that interface, in CCGs, CSUs and councils.

Deferred payment schemes and the absence of financial services products through which to finance alternative options for buying care

Nobody has to sell their property even NOW, under the current legal framework, to fund their care.

Deferred Payment Schemes

There are already deferred payment schemes in operation, secured by a charge on the property, when a person needs to pay for care in a care home. Stephen Webb has FOI’d councils this week and found vast differences in the extent to which a deferred payment would seem to be available in the real world, although it is a mandatory option for someone who wants one and qualifies with regard to sufficient equity in their property. So the legislation already makes councils the behind-the-scenes owners of properties with low interest rates, and makes them have to pay the costs of care up front. For people preferring to stay in their own home, the sad fact is that insurance or bond-based products have not been forthcoming from the financial services and equity release market for people to buy into.

I think that that is partly because of the impossibility of distinguishing between a want and a need, let alone between what should be free response by community health care services to an NHS health care need, and what should be chargeable as social care if provided by the State. The insurance market doesn’t have the public law legal acumen to become embroiled in that sort of debate, especially not if replicated in hundreds of distressed households up and down the country.

No detail has been given about how the commercial attractiveness of the notion can actually be increased for the market’s providers; and without that, people won’t be able to avoid lumbering their partners and families with the cost of care.

Carers’ Unpaid Leave…

Finally, a new statutory entitlement to carers’ leave – unpaid – is promised – so that one can be assured of a return to work when compassionate leave is no longer needed, will be seen to hurt business in terms of skills loss. It will force more people on to Carers’ Allowance, too, as they have to live on something, and put up assessment and personal budget numbers for carers under the Care Act.

But the greater concern is surely the disproportionate impact on women, and gender equality in society generally?

It is still the position in this country that women are more often carers than men, and women are often the lower paid of a couple, making it make sense for the woman to be the one who gives up work.

I think that the underlying economic reality is that carers, in the main, women, will be persuaded for the good of their families they must go back to being the heart of the home and provide the care, or even stay with a partner whom they no longer wish to be with, in order to preserve the assets for the children.

What was not mentioned in the manifesto?

No commitments with regard to clarifying the ambiguity as to the sleep-in time counting rules, for national minimum wage levels – which are crippling the sector at the moment, and embarrassing HMRC inspectors; no commitment to banning councils from commissioning from agencies that use zero hours contractors or agencies that don’t pay the living wage. And no mention of putting back any of the funding that has been taken out over the last 5 years, and contributed to the crisis that the sector is in, so far as insufficient money even to meet statutory duties is concerned. No reference to THE CAP, until we were later told it was there all the time, in the backs of the authors’ minds…

Further comments

Post code differentials

Local Authorities use national guidance with minimal underpinning in regulations, for charging for home care services. They are allowed to use their discretion and local charging schemes vary. Aligning the approach to the counting of one’s house towards the means assessment, is not going to change local variations in other respects so care costs will still depend on where one lives and the politics of one’s local area.

Is this a resurrection of the Dilnot proposals?

The Care Act Dilnot provisions, deferred until 2020 after the last elections, involved a different kind of a concept to a floor below which your money would be left in your hands: it advised a cap on the maximum amount of notional spend a council’s client (OR a privately contracting ‘above threshold’ person needed to have spent on them, in relation to their needs, before care would become free (the cap having been settled last time round at £72,000). So the rich did well out of that, and could do even better if they accepted coming through the council’s arrangements after getting the meter ticking, by benefiting from the council’s bulk purchasing power to obtain a lower fee for care.

Before the U-turn, under the Conservative proposals, a person who was rich but ill for a very long time would not have got the benefit of any cap on their care costs – not even notionally through a local authority objectively assessed rate, nor in real terms.

Now, after the U-turn, it appears that the Conservatives have been reminded that even deferring the Dilnot lifetime cap until 2020 had already attracted much criticism first time round, and that it is an essential feature to offer to UPPER Middle England – to people who might like to keep £100,000 of equity, and not risk their spouse having to downsize if surviving them, AND wish to spread the cost of what will otherwise be insurance across the whole population. Even though the ‘upper threshold’ was going to be £118,000 under Dilnot, and the cap on a person’s spend, £72,000. It seems that there is no prospect of the population being told WHAT the spend might be – Mrs May even mentioned £10K to Andrew Neill, which CANNOT possibly be correct!! So I wonder who is making this stuff up, personally.

A problem for the Conservative dogmatist however, is this.

The Dilnot provisions would have impacted on the care home market and got rid of the private client subsidy – by giving everyone, however rich, an irresistibly economically rational incentive to use the local authority route into social care.

That would have meant central government would have had to have provided more funding to local authorities to meet the overall ‘bubble-up’ costs of the policy. This would have been needed to keep the sector afloat once the private subsidy evaporated – although in that one-off measure, one of the greatest iniquities operating in the sector could have been got rid of. That was its genius. And that was why it was almost bound to be dropped – no political party, let alone the one last elected, was willing to put up taxes for the ‘Cinderella’ service of social care.

A £100,000 ‘floor’ will not achieve that effect – there was no mention of a meter for one’s notional costs, or maximum SPEND – so there would have been no need or reason to entrust the shopping for one’s care, to one’s council, in order to start any meter towards a cap, running. It would have left better off people – culturally disdainful of social services perhaps – with more reason to make the choice of buying care in privately – if they wanted to spend their own money – rather than having the council control the question of whether they are eligible at all, and the size of their care packages, subject only to judicial review.

I guess that would have kept the numbers down for social services, and would have fitted with the fact that they are all severely under-staffed after 8 years of austerity, even now.

But if we ARE now having a cap, and it is going to be a sort of Dilnot cap, the idea of Upper Middle and Middle England submitting to social services assessment, and a notional spend, without anyone ever challenging the local authority view through public law proceedings, is about as likely as the Conservatives losing the election. The 4.5 billion taken out of social care would HAVE to be put back into it for more staff, more training, and an appeal system, if not a tribunal.

For extreme anoraks, that’s a really interesting prospect whilst the Government has STILL got to come off the fence about a Tribunal for all the Liberty Protection Safeguards challenges that might be better off dealt with there rather than in the Court of Protection. Isn’t life interesting?

– The problem of dealing with clients who had been able to supplement the council’s care packages with ILF money, once that source of additional funding for people dried up: ILF was effectively a grant that enabled a large number of younger people to meet a large slice of their own needs, thereby purchasing a better quality of life and more well-being than those who were not eligible for the grant could ever have hoped for by way of social care. Inevitably when the fund closed, a loss of wellbeing was going to be experienced whenever a council decided that it could not and would not continue to pay for everything that the individual had previously had the means to buy.

– Whether a council must be able to show in detail whether it considered all of the statutory wellbeing features set out both in section 1(2) and had regard to those in 1(3) of the Care Act (to which the answer was yes, and the essence of s.1(3)(d) is a duty, when taking decisions, “have regard to each person’s particular individual circumstances.”

– Who is the decision-maker on what a person needs, after they have been found at least eligible? (the council), and to what extent are the client’s personally desired outcomes a necessary or determining factor for care planning? “There is no warrant for a conclusion that [the] balance is weighted more in favour of the service user, than it would otherwise be under the Act, to the extent that the service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority. The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration.”

– The extent to which a reduction in social activities on account of a reduced budget would invalidate a care plan’s legal validity: “It is possible that there might be less opportunity to go on day trips accompanied by his PAs. This very limited curtailment does not amount to a breach of s.1 of the Act.”

– How far a council has to go, in taking all reasonable steps to agree a care plan with the client before saying “No, we are not paying any more, and this is why.” – to which the answer was quite far, and conscientiously, but consent is not a necessary constituent of a signed off care plan.

– How minutely or not a council needs to be able to justify its mathematics in relation to its stance that what it is offering will conceivably and defensibly meet need: not down to the penny, and the evidence basis might in certain cases need only to be based on the staff’s opinion based on experience. With regard to carers’ terms and conditions, the higher DP agency rate was irrelevant because the client preferred to employ carers. And the Defendant said that there was no evidence that carers would leave, as the two main carers had withdrawn their resignations and the minimum wage of £7.20 “and the £40 night shift rate were compatible with rates many other service users were paying.”

– The extent to which a person’s emotional and psychological health and wellbeing are factors which are so obviously material to a proper assessment or care plan that a failure to take them into account would constitute grounds to vitiate any relevant decision: the judge found in favour of the Claimant’s position on this issue.

– The meaning of the concept of ‘independent living’, as a right in article 19 of the UN Convention on the Rights of People with Disabilities. It is not going to be of any real use to a disabled person, where the domestic legal framework presents as more detailed in relation to domains of daily life and wellbeing: in particular, no specific ambiguity in the Care Act was identified, in respect of which Article 19 might serve as an interpretive tool.

– The extent to which a council can say to a direct payment claimant “even if this sum isn’t enough for what we accept is an appropriate way for you to meet, it’s enough for something else that would do” (with regard to the notional cost of live in care). The council did not succeed in contending that the cost of something that they had not ever seriously suggested that Mr Davey could be offered (live in care in his own home) should be a benchmark proving that the greater cost offered was automatically enough – and that is not surprising: no council cannot offer a budget for something that would depend on a contract between a third party and the client about the use of a room belonging to the client!) The judge said this: “The purpose of the Personal Budget in the October 2015 Support Plan is a budget to cover the cost of a team of PAs. In this regard, whether alternative live-in care could be paid for within this budget is not relevant.”

Is it an end to litigation and the promise of the Care Act?

It’s the first proper case on care planning and wellbeing under the Care Act in a period of extreme austerity in adult social care, so it is very helpful for everyone; and there are no surprises in the judgement for anyone who appreciated that the Law Commission’s vision for the Care Act was based on continuing the substance of the pre-Act case law built up over 15 years.

But it is not an indication that a 42% cut in what has been spent overall, (eg in a mixed package with Health, and supplemented by ILF) is always going to be a safe bet for a council. There was a cut in what had been spent, but it was not a cut in what the local authority had contributed: it was an increase – and one in respect of which the judge said this: “The Defendant did put in a very substantial amount of effort, over an extended period of time, to seek to assuage the concerns of the Claimant and his mother.” There is no explanation as to what happened to the NHS contribution, interestingly enough, when the ILF ceased.

The legality of a cut to a care plan all depends on adherence to due process as well as to rational defensible substantive thinking on the matters that the Care Act and guidance require to be considered.

For legal framework commentators who like to assert that ‘need’ can be a subjective concept for the client’s determination under the Care Act, this part of the judgment would finally appear to make such a stance untenable: “there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on wellbeing matters set out in s.1(2)) then there is a breach of the statutory duty. There is, thus, a duty on the part of the local authority to assess these factors.”

The implications for practitioners:

Legal practitioners need to refresh their memories of the public law that they learned once: procedural impropriety, illegality, irrationality and breach of human rights are the grounds for judicial review; and to remember that judicial review is not an appeal – a high threshold of irrationality has to be reached to shift the position that a public body’s decision, particularly as to the use of scarce resources, is valid – it remains that way until quashed, even if people don’t agree with it. “The result may impose change or even strictures upon the Claimant which are unwelcome, but that does not of themselves mean that the process has been unlawful.”

When reading assessments it is important to focus on whether the issues facing the client are reported speech by him/her, or a carer – or a professional’s opinion, whether or not consistent with what they the staff, have been told.

Social workers and advocates need more legal literacy elements in their professional training – difficult conversations training, effectively, by people with legal acumen.

The funding (and thus the PA hours) had been sensibly tapered down over a period. An experienced social worker was brave enough to assert in this case that being alone for longer periods of each day would improve Mr Davey’s independence and confidence, and that changes in the Claimant’s current care team would be positive for the Claimant and his emotional wellbeing, enabling him to reduce dependence upon specific carers. This reminds me that the position of Kensington & Chelsea was that not providing mobility assistance at night would improve Ms McDonald’s privacy and safety. “That was a social worker’s assessment which could not be regarded as Wednesbury unreasonable and was a matter for her professional judgment…. I am satisfied that Ms Lovelock and Ms Collins did genuinely believe both that developing the Claimant’s independence was a need and that spending more time alone was a way in which to achieve this end.”

One may not aspire to be the person who has to say such things, as a social work trainee, but one needs to bite the bullet, if it can be done conscientiously and consistently with social work professional ethics, if one chooses to work in the public sector. A position on the part of a client, carer and advocate that it is essential that there are no changes to a plan, although understandable in human terms, cannot be allowed to fetter the judgement and probing for an evidence base by review staff who are spending public money.

Any council or CCG can offer a re-assessment, once challenged about a proposed revision – and many do, once someone is well informed enough to point out that the public body has blatantly failed to comply with the Act somewhere along the customer journey. Judicial review could achieve no more, after all. But the re-assessment won’t be of any use to the client if the council’s instructions to staff about re-assessment amount to a continuing illegality under the Act: for example – “Make sure that the indicative budget comes out at what it came out at before, even if you have written down more of the client’s outcomes”; or “Do not let the carer even begin to think of withdrawing from caring informally – we can’t afford that”.

Given the risk above, practitioners MUST elicit sufficient information from a council or CCG as to their approach to the statutory thinking stages, prior to being able to give the client an idea whether or not there are grounds for judicial review – and accept or refuse a re-assessment as part of pre-action protocol correspondence, dependent on whether the public body is prepared to shift any indefensible approach that would still infect any new process.

On the question of pay rates for PAs in the area, where the evidence from the council was weak and based on the practitioner’s opinion, contracts teams can help with evidence; with regard to any cuts, and public bodies’ lawyers should note that it is always best to add to a care plan words such as this: “if problems do arise from the trialled changes, we will revisit the issue.”

This openness to the need to reconsider the situation soon, helped Oxfordshire on pay rates but it was also clear that Mr Davey had in the past and recently himself recruited external non-family carers at the minimum wage. The council provided a cogent explanation why the Claimant’s evidence of a lack of response to his own recent advert for carers, did not establish that it was difficult to recruit at the rate provided for.

It’s not surprising that Mr Davey lost, on the facts of the case. His carers withdrew their resignations and he very honestly acknowledged that as long as he didn’t have to have more than 2 hours alone, he could stand more than one period a day of being alone, without suffering from depression or anxiety, and he had refused counselling.

But I don’t think that the case sends any particular message out that this is a field that will be shutting down.

It was just not the best case to take to court on wellbeing if one wanted to set a precedent that would be good for disabled people – in the same way that Elaine McDonald’s and KM’s cases were not the best cases to take about the concept of dignity in care, or about justification for the sum allocated.

What are the practical implications of this case?

For Oxfordshire, satisfaction that their conscientiousness and experience of senior staff won the day within the judicial review jurisdiction and relief that they were allowed to get their case in order during the run up to the hearing…

For the gentleman’s PAs, a choice as to whether to take less money by way of salary or leave…

For the rest of us – whoever we may be advising – the need to balance the desire to stand up for someone, against keeping in full sight the risk that there need to be some rock solid un-loseable cases brought to court under the Care Act – if things are really so very grim out there – which is why I am promoting the launch of a charity for free legal advice to try to encourage those cases out of the woodwork.

CASCAIDr will launch soon, once it has been approved for registration by the Charity Commission.